Himachal Pradesh High Court
National Insurance Co. Ltd vs Sh. Hanogi Mata Sansthan & Ors on 16 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RSA No. 492 of 2003.
Reserved on: 16.5.2015.
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National Insurance Co. Ltd. ......Appellant.
Versus
Sh. Hanogi Mata Sansthan & ors. .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? .
For the appellant(s): Mr. Ashwani K. Sharma, Advocate.
For the respondent: Mr.C.N.Singh , Advocate for respondent No. 1.
Mr. Sanjeev Kuthiala, Advocate, for respondent No.2.
Mr. Parmod Thakur, Addl. AG with Mr. Neeraj K. Sharma, Dy.
r AG for respondents-State.
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Justice Rajiv Sharma, J.
This regular second appeal is directed against the judgment and decree of the learned Addl. District Judge, Mandi, H.P. dated 21.10.2000, passed in Civil Appeal No. 83 of 1995.
2. Key facts, necessary for the adjudication of this regular second appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff) has filed a suit for payment of damages/compensation against the appellant-defendant No. 5 and respondents-defendants No. 2 to 4 (hereinafter referred to as the defendants). According to the plaintiff, Shrimata Hanogi Sansthan is a Society registered under the Society Registration Act, 1860.
The Sansthan manages the affairs including its immovable property which includes Satsang Bhawan, Kitchen, Canteen building and Dharamshala constructed by the trust for the benefit of pilgrims and visitors. Sh. Pawan Kumar, was authorized to file the suit on behalf of the Sansthan. In the last ::: Downloaded on - 15/04/2017 18:11:50 :::HCHP 2 week of December, 1987, widening work of NH at point 229/0 was carried out by defendant No. 1 through Gopal Sharma. During the widening work, heavy .
blasting was done as a result of which, heavy boulders and rocks/muck were thrown on the temple and other buildings. The damage was caused to the temple and buildings. The necessary remedial measures were not taken to avoid damage to the temple. The plaintiff had to re-construct and re-build the damaged building by spending Rs. 85,000/-.
3. The suit was contested by defendants including the appellant-
defendant Insurance Company. According to defendant No. 1 Gopal Sharma, work was allotted to him vide letter dated 4.12.1987. This work was insured with the National Insurance Company. It is denied that heavy blasting was carried out. Inspite of the best efforts by the deendant and keeping in view the nature of the site on the spot, some damage has been caused to the temple. According to the State Government, the widening work was completed in the year 1978-79. The temple and other buildings were constructed after completion of the widening work. There existed loose boulders on the hill side for which temple authority approached Public Works Department, which in the interest of safety of public and the temple premises engaged defendant No. 1 for removal of loose boulders on contract. The payment of Mr. Gopal Sharma was withheld. It was released only after he produced no-objection certificate from the plaintiff. No damage has been caused to the plaintiff by the defendants. Only defendant Gopal Sharma, was responsible to the loss. There was vertical slope ranging from 70 degree to 80 degree. The appellant-Insurance Company also filed the written statement.
::: Downloaded on - 15/04/2017 18:11:50 :::HCHP 3They have shown ignorance about the damage caused to the temple while executing the widening work.
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4. The learned Senior Sub Judge, Mandi, H.P., framed the issues on 16.3.1992. The suit was dismissed by the learned Senior Sub Judge, Mandi, H.P. on 8.6.1995. The plaintiff, preferred an appeal before the learned Addl.
District Judge, Mandi. The learned Addl. District Judge, Mandi, allowed the appeal and suit was decreed partly against appellant-defendant No. 5 i.e Insurance Company for recovery of Rs. 68,590/-. Hence, this regular second appeal.
5. This Regular Second Appeal was admitted on the following substantial question of law on 19.3.2004:
"1. Whether the suit filed by the plaintiff claiming damages/compensation is maintainable against the appellant/insurance company when there was no privity of contract between the two and whether a stranger to the contract can enforce the same even the contract may have been entered for his benefit?"
6. Mr. Ashwani Sharma, Advocate, for the appellant has vehemently argued that the suit was not maintainable against the Insurance Company.
On the other hand, Mr. R.L.Chaudhary, Advocate, has supported the judgment of the first appellate Court. Mr. Sanjeev Kuthiala, Advocate, for respondent No. 2 has argued that the National Insurance Co. alone was liable to indemnify the plaintiff.
7. I have heard the learned Advocates for the parties and gone through the judgments and records of the case carefully.
::: Downloaded on - 15/04/2017 18:11:50 :::HCHP 48 The work in question was awarded to the defendant Gopal Sharma vide letter dated 15.12.1987. The widening of the road was taken up .
by the Public Works Department in the year 1978-79. The work was allotted to Gopal Sharma in larger public interest to protect the public at large including the property of the temple. Gopal Sharma has insured the work against the loss on 5.12.1987.
9. PW-1 Pawan Kumar testified that the damage was caused to the property of the temple. He was looking after development work of the Sansthan. Sh. Gopal Sharma DW-1 started the execution of the work in front of the temple in the year 1987. The work continued up to 3-4 months, as a result of which, the Satsang Bhawan, office building and front portion of the temple was damaged including canteen and kitchen. The damage resulted due to blasting without adopting safety measures. The offerings in the temple were also reduced. He has prepared estimate vide Ext. PW-1/C. He wrote letters to Gopal Sharma about the possible damage vide Ext. PW-1/D and PW-1/G. The reply of the same is Ext. PW-1/H. He also wrote letter to Ex.
Engineer vide Ext. PW-1/I and the reply of the Public Works Department is Ext. PW-1/K. He has also proved copy of notices Ext. PW-1/M and Ext. PW-
1/N, receipt Ext. PW-1/O and acknowledgement Ext. PW-1/R.
10. PW-2 Yadvinder Sharma, testified that Gopal Sharma was executing the cutting work near Shrimata Hanogi Temple, as a result of which, huge damage was caused to Satsang Bhawan, Dispensary, temple and canteen. The damage was caused due to blasting work. No safety measures were taken.
::: Downloaded on - 15/04/2017 18:11:50 :::HCHP 511. PW-3 Jai Ram, testified that he was working as mason in the temple. The cutting work was undertaken in front of the temple. The .
damage was caused to the Satsang Bhawan, office and temple. After that re-
construction work was carried out by the temple authority. He worked as mason.
12. PW-4 T.D.Sharma, testified that he is founder member and patron of plaintiff. According to him, the trust is looking after movable and immovable property of the plaintiff. According to him also, while executing the work, blasting was undertaken. It resulted in damage caused to Satsang Bhawan, kitchen and canteen. He is Civil Engineer by profession. He has retired as Ex. Engineer from H.P. PWD. The estimates of damage were prepared by Pawan Kumar PW-1.
13. Gopal Sharma, DW-1 has testified that in the year 1987, he undertook contract to remove the boulders and loose strata near the temple.
he has taken insurance policy from National Insurance Company for Rs.
5,00,000/-. He has proved insurance cover note Ext. DB. According to him, if any damage has been caused, it was to be indemnified by the Insurance Company. He executed the work from December 1987 to March 1988. In the year 1988, he also paid a sum of Rs. 15,000/- to the plaintiff. He handed over the Insurance Policy to the plaintiff and thereafter no objection certificate Ext. DA was issued by the plaintiff.
14. DW-2 Suresh Patyal, has proved the insurance policy bearing No. 179894. It was valid between 5.12.1987 to 14.5.1988. He also proved on record the terms and conditions vide Ext. PW-5/A. ::: Downloaded on - 15/04/2017 18:11:50 :::HCHP 6
15. What emerges from the facts enumerated hereinabove is that the work was allotted to Gopal Sharma on 4.12.1987. He has executed the work .
between December, 1987 to March, 1988. The insurance cover note of policy was duly proved. it was valid between 5.12.1987 to 14.5.1988. The work in question was insured for a sum of Rs. 5,00,000/-, as per Ext. DB dated 5.12.1987. There was privy between the National Insurance Company and defendant No. 1 whereby the Insurance Company had to indemnify defendant No. 1 Gopal Sharma for the damage caused to the plaintiff while executing the work awarded on 4.12.1987.
16. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application(s), if any.
May 16, 2015, ( Rajiv Sharma ),
(karan) Judge.
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